' Mawaz Khan appellant being aggrieved of the acquittal of accused namely Muhammad Iqbal son of Fida Hussain, Noor Muhammad son of Sumundar Khan, Allah Noor son of Muhammad Iqbal and Muhammad Nisar son of Sarwar Khan from the charge under sections 302/34, P.P.C. By the learned Additional Sessions Judge, Attock, vide judgment, dated 22-5-1982 in a private complaint preferred this appeal under section 417(2), Cr.P.C. Before this Court which was admitted to regular hearing through order, dated 28-3-1987 only against Muhammad Iqbal and Noor Muhammad accused.
2. Precisely, the facts in the background are that on the statement of Mawaz Khan appellant, a case under sections 302/109, P.P.C. Was registered against the respondents namely Noor Muhammad and Muhammad Iqbal and others for the allegation of murder of Bahram Khan son of Mawaz Khan. According to the prosecution story, Bahram Khan deceased while running joint business with Amir Khan developed illicit relations with Mst. Begum Jee, wife of Amir Khan, as a result of which Amir Khan was nursing grudge against the deceased. As story goes, Amir Khan alongwith Allah Noor and Adam Khan (proclaimed offender) accused informed the complainant on 11-5-1980 that two days earlier Bahram Khan deceased had gone to village Jhamat and Mahluwali for the recovery of loan from the customers but did not turn up whereupon the complainant while making search of the deceased with the help of his brother Mastan Khan, nephew Ayaz Khan and Amir Khan, located the dead body of the deceased on 12-5-1980 from a jungle known as Jarger near Dhoke Aziz. Consequently on lodging the report by Mawaz Khan a case under sections 302/109, P.P.C. Was registered against the respondents and others. The appellant being dissatisfied with the investigation of the police filed a private complaint and produced seven witnesses in support of the charge. Dr. Muhammad Afzal Malik, who conducted the post-mortem examination on the dead body of Bahram Khan, found the following injuries on his person:--
(1) Incised wound 3 x 1 c.m. With fracture of rib on left side just on left nipple.
(2) Incised wound 3-1/2 x 1 c.m. 1/2 c.m. Below injury No,
1. There was fracture of rib.
(3) Incised wound 3 x 1 c.m. About 1 c.m. Left to injury No,2.
(4) Incised wound 3 x 1 c.m. Left to injury No,3.
(5) Incised wound 3 x 2 c.m. It is below to injury No,4 and there was fracture of rib.
(6) Incised wound 3 x 2 c.m. About 8 c.m. Below to left nipple. There is a fracture of rib on left side.
(7) Incised wound 6 x 4 c.m. On outer side of right hip joint.
(8) Incised wound on left side base penis, cutting the root of penis about 1/3rd.
' The ribs and skull were fractured and in the opinion of the doctor, the death was caused due to shock as a result of injuries Nos.1 to 6 which were caused by sharp-edged and blunt weapons. The injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature.
3. Mawaz Khan complainant P.W.2 narrated the relations of the accused inter se and while making a detail statement fully corroborated the story given in the compliant. Abdullah Khan P.W.3, Lambardar of the village, stated that it was disclosed to him by Amir Khan accused that the deceased had illicit intimacy with his wife, therefore, he with consultation of Adam Khan and Allah Noor took into confidence Muhammad lqbal and Noor Muhammad to kill Bahram Khan deceased.
Adam Khan and Allah Noor also while narrating the same story before him one by one confessed their guilt of committing the murder of Bahram Khan due to Ghairat and sought his help for patch tip. Muhammad Ijaz P.W.4 and Mastan Khan while making similar statements corroborated the statement of Mawaz Khan P.W.2. Mastan Khan P.W.5 stated that the dead body of Behram Khan was found lying in a Nalla of Garger Forest. Maseen Khan P.W.6 stated that he while passing through the Jungle to go to village Malhad came across Bahram Khan in the company of the accused including Muhammad lqbal and Noor Muhammad respondents herein and later came to know that Bahram Khan was murdered. Abdul Majid P.W.7 had also seen the deceased in the company of the accused in the Jungle 'while passing through the said Jungle and later came to know that the deceased was found lying dead in the same Jungle.
4. The witnesses namely Taza Gul C.W.1, Kajal Khan C.W.2, Aslam Khan C.W.3, Shazan Khan C.W.4, Noor Muhammad C.W.5, Muhammad Iqbal C.W.6 and Sultan Sikandar examined at the trial were cited by the police in the Challan case.
5. The accused in his statement under section 342, Cr.P.C. While denying the allegations pleaded their false implication in the case.
6. During the course of investigation, Muhammad lqbal respondent herein made a confessional statement under section 164, Cr.P.C. Before a Magistrate 1st Class, Pindi Gheb to the following effect:- {{URDU TEXT}}
7. The learned trial Judge after discussing the entire evidence acquitted all the accused from the charge.
8. Learned counsel for the appellant contended that the trial Court while following the procedure laid down in Noor Elahi's case PLD 1966 .SC 708, proceeded with the complainant and since the accused named in the private complaint were different to that of the accused named in the police case, therefore, the trial Court should have proceeded with the trial in the private complaint independently as the joint trial in the given situation was not proper. He added that the learned trial Judge did not bother to summon and examine the most important witness i.e, the Magistrate who recorded the confessional statement of Muhammad Iqbal and S.-I./S.H.O. (Malik Hussain) who investigated the case as a result of which the prosecution was seriously prejudiced. Learned counsel has contended that the inculpatory judicial confession in the given circumstances alone was sufficient to prove the charge and that non-examination of the Magistrate caused grave injustice to the complainant
9. Learned counsel representing the respondents in the present case without justifying non- examination of the Magistrate, a most material witness, and S.-I./S.H.O. Who conducted investigation of the case submitted that the occurrence in the present case took place in May, 1980 whereas the respondents were acquitted by the learned Additional Sessions Judge through judgment, dated 22-5-1982 and now a period of about 18 years has passed since the acquittal of the respondents, therefore, the retrial of the respondents at this belated stage will not be in the interest of justice.
10. I have heard the learned counsel for the parties and have gone through the record with their assistance. The learned trial Judge while proceedings with the complaint case together with the police case recorded the evidence of the witnesses of the private compliant as well as the police case but did not examine the material witnesses cited in the police case and at the conclusion of the trial while disbelieving the evidence produced in the private complaint acquitted the accused.
According to the principle laid down in Noor Elahi's case, in case of different sets of accused in the police case and private complaint, the police case can proceed independently to that of the complaint case. However, in the present case, both the cases were jointly tried, therefore, the trial Court was bound to summon all the witnesses including the Magistrate, who recorded the confessional statement of Muhammad Iqbal. The non-examination of the Magistrate as most material witness had caused serious prejudice to the prosecution. The evidence of judicial confession was not allowed to bring on record by not summoning the Magistrate as Court-witness whereas the evidence of extra-judicial confession and last-seen brought on record in private complaint was disbelieved. This may be observed that the lapse of considerable period since the acquittal of the accused is not itself a valid ground to overlook an illegality which resulted into injustice to the aggrieved party. It was unfair not to summon and record the material evidence in the case, which would be miscarriage of justice, and, therefore, mere lapse of considerable period would not undo the injustice done to a person. No doubt, in the normal circumstances, retrial in the cases in which further evidence is required to be recorded as observed by the apex Court in Sultan Khan and 3 others v. The State and 2 others 1987 SCM R 237 and Shah Wali v. The State 1972 SCM R 95 is not ordered, but the present case having different features has distinguishable facts. It was observed by the apex Court in Abdul Latif v. Bagga Khan and State PLD 1996 SC 152 asunder: ' "The learned counsel for the appellant has very vehemently argued that the incident in the case has taken place in the year 1976 and almost a period of more than 19 years has passed and, therefore, it will not be expedient and in the interest of justice to order retrial of the case after a lapse of such a considerable period of time. In support of his contention, the learned counsel for the appellant has relied on the case of Sultan Khan v. The State 1987 SCM R 237, Phulail Khan v. The State and Shah Wali v. The State 1972 SCM R 95. The facts of the above cited two cases are, however, quite distinguishable. In Sultan Khan's case (supra), the retrial was directed as a de novo trial of the accused and because of the elapse of a period of about 11 years, the retrial was not considered in the interest of justice and reliance was placed on the observations of this Court in the case of Phulail Khan v. The State (supra). The consideration in both the above cited cases was that on account of passage of considerable period of time, it may not be possible for the prosecution to secure attendance of the prosecution witnesses originally cited in the case. In the case before us, however retrial has been ordered from the stage of only hearing arguments and no fresh evidence is to be recorded in the case. Therefore, the consideration which persuaded this Court in the above cited two cases is not relevant in the present case. As would appear from the preceding discussion, the Court while ordering retrial of an accused in exercise of its powers under section 439, Cr.P.C. Keeps in view the view taken by the trial Court of the evidence in the case, the nature of error committed, the magnitude of the apprehended miscarriage or failure of justice, the possibility and extent of prejudice to the accused, the chances of conviction, the expenses of a retrial and the passage of time between commission, of crime and order of retrial. However, mere passage of time between the date of commission of the crime and order of the retrial made by the Court in isolation has never been considered as a sufficient ground for refusing to make an order of-retrial of an accused. The passage of time between the date of commission of offence and order of retrial is only one of the relevant considerations which the Court will keep in mind in the totality of, the circumstances of the case while ordering retrial of an accused in the case. In the present case, as earlier pointed out by us, the retrial of the accused does not involve any fresh examination of -witnesses in the case and as such the consideration which prevailed with this Court in the two cited cases in refusing the retrial of accused in those cases are not relevant here.
' We, therefore, find no merit in the submission of the learned counsel for the appellant that on account of passage of a long time between the date of incident and order of the retrial, it would be inexpedient now to order retrial of the accused in the case. With these observations, the appeal is dismissed."
11. For the foregoing reasons, I while setting aside the acquittal of the respondents namely Noor Muhammad and Muhammad Iqbal allow this appeal and remand their case to the learned Sessions Judge, Attock, for retrial. The learned trial Judge will summon and examine the S.-I./S.H.O.
Who investigated the case and the Magistrate, who recorded the confessional statement of Muhammad Iqbal as witnesses and may if deem necessary examine any other witness already examined. Since the respondents namely Muhammad Iqbal and Noor Muhammad were on bail at the time of acquittal by the learned Additional Sessions Judge, therefore, they shall remain on bail during the trial subject to their furnishing bail bonds in the sum of Rs,50,000 each with one surety each in the like amount to the satisfaction of the learned trial Judge.